Filing # 110137905 E-Filed 07/13/2020 01:02:08 PM

IN THE DISTRICT COURT OF APPEAL, OF FLORIDA

FIRST DISTRICT

DANIEL W. UHLFELDER,

Plaintiff-Appellant,

vs.
Case No.:1D20-1178
THE HONORABLE RON DESANTIS, L.T. Case No.: 2020-CA-552
in his Official Capacity as Governor
of the State of Florida,

Defendant-Appellee.
___________________________________/

APPELLANT’S INITIAL BRIEF

On Appeal from the Circuit Court, Second Judicial Circuit,

In and for Leon County, Florida

/s/ Daniel W. Uhlfelder

Daniel W. Uhlfelder, Esq.
FL Bar No. 0133922
daniel@dwulaw.com (primary)
paralegal@dwulaw.com (secondary)
reception@dwulaw.com (secondary)
DANIEL W. UHLFELDER, P.A.
124 East County Highway 30-A
Santa Rosa Beach, FL 32459
T: (850) 534-0246
F: (850) 534-0985

/s/ Gautier Kitchen

Gautier Kitchen, Esquire
Florida Bar No.: 0689793

i
THE KITCHEN LAW FIRM
103 N. Meridian Street
Tallahassee, Florida 32301
Telephone: (850) 329-6715
gautier@kitchen-law.com
josh@kitchen-law.com

/s/ Marie A. Mattox

Marie A. Mattox [FBN 0739685]
MARIE A. MATTOX, P. A.
203 North Gadsden Street
Tallahassee, FL 32301
Telephone: (850) 383-4800

Attorneys for Plaintiff-Appellant

ii
 TABLE OF CONTENTS

TABLE OF CITATIONS ………………………………………………………….iv

PRELIMINARY STATEMENT…………………………………………………...1

STATEMENT OF THE CASE AND FACTS……………..……………………….1

SUMMARY OF THE ARGUMENT……………………………………………….7

ARGUMENT…………………………………………………………………….....8

POINT ONE

UHLFELDER’S CLAIMS ARE NOT BARRED BY THE

SEPARATION OF POWERS DOCTRINE.

A. STANDARD OF REVIEW…..………………………………………8

B. ARGUMENT ON THE MERITS………………………………….....8

CONCLUSION…………………………………………………………………...19
.
CERTIFICATE OF SERVICE………………………....…………………………20

CERTIFICATE OF COMPLIANCE……………………………………………...21

iii
 TABLE OF CITIATIONS

Cases (in alphabetical order):

Burnsed v. Seaboard Coastline R. Co., 290 So. 2d 13, 18 (Fla. 1974)………………9

Burton v. State, 49 So. 3d 263, 266 (Fla. 1st DCA 2010)……………………………9

City of Freeport v. Beach Cmty. Bank, 108 So. 3d 684, 687 (Fla. 1st DCA 2013)…13

In re Guardianship of Browning, 568 So. 2d 4, 14 (Fla. 1990)…………………….9

Treasure Coast Marina, LC v. City of Fort Pierce, 219 So. 3d 793, 795, 802 n.13
(Fla. 2017)…………………………………………………………………………..8

Statutes and Rules

Art. I, §2, Fla. Const……………………………..…………………………...…9,10

Art. IV, §1, Fla. Const………………………………………………………………9

§20.02, Fla. Stat. (2019)…………………………………………………………...13

§252.36(1)(a), Fla. Stat. (2019)……………………………………………………10

Secondary Authority

David Leonhardt, Florida, Finally: The state will go on lockdown, far too late.,
N.Y. TIMES, APR. 2, 2020,
https://www.nytimes.com/2020/04/02/opinion/coronavirus-desantis-
trump.html...............................................................................................................18

Fred Barbash and Alex Horton, Florida governor issues coronavirus stay-at-home
order after heavy criticism, WASH. POST, Apr. 1, 2020,
https://www.washingtonpost.com/nation/2020/04/01/coronavirus-florida-
desantis...............................................................................................................16, 17

iv
 PRELIMINARY STATEMENT

In this initial brief, Appellant/Plaintiff, Daniel W. Uhlfelder will be referred

to as “Uhlfelder,” and Appellee/Defendant, The Honorable Ron DeSantis will be

referred to as “DeSantis.” The record consists of pages 1 - 898. References to the

Record will be identified by letter “R” followed by the page number. For example:

(R. 66) refers to the Record at page 66. The Record includes the transcript of

proceeding on April 7, 2020 and is identified by reference to the page as a part of

the Record.

STATEMENT OF THE CASE AND FACTS

This is an appeal from the Circuit Court's (“trial court”) Final Order Granting

DeSantis’ Motion to Dismiss with Prejudice. (R. 850). The case involves

Uhlfelder’s request for emergency injunctive relief against DeSantis to compel him

to comply with his most basic constitutional duties to protect the health and welfare

of Florida’s citizens during the current deadly global pandemic where Florida has

now become its epicenter. Uhlfelder specifically prayed for the trial court to issue

two preliminary injunctions directing DeSantis to order: (i) a temporary statewide

Beach Closure Order and (ii) a statewide Safer-at-Home Order. (R. 10-21).

On April 1, 2020, DeSantis filed his Motion to Dismiss arguing Uhlfelder lacks

standing to bring his action, the trial court lacked the authority to grant the requested

relief and Uhlfelder failed to satisfy the requirements for injunctive relief. (R. 22-

1
36). On April 6, 2020, Uhlfelder filed his Memorandum in Opposition to Motion to

Dismiss. (R.164-176). On April 7, 2020, the trial court heard argument on DeSantis’

Motion to Dismiss and granted the Motion finding it “lacks authority to grant the

relief requested due to the separation of powers clause of the Florida Constitution.

See Art. II, Section 3, Fla. Const.” (R. 854-897).

During the hearing, the trial court noted:

THE COURT: All right. Well, on this part of the case, what I would
like to observe is I'm not going to reach the standing issue, because,
number one, I believe that Mr. Uhlfelder has an understandable
concern that he has raised here, and I believe he has pursued this
matter in good faith and is seeking what he believes to be an
appropriate response to the COVID crisis. We're all dealing with a
difficult situation here. We're conducting court in an unusual fashion.
I hate the fact that we're not all in one room and I can't look people in
the eyes and tell them what I'm thinking and explain it to them,
because I think we lose a lot in translation.

Having said that, I have been through everything that was sent to me
and I have reviewed memos. And it's one of those cases that you wake
up when you -- when your old dog who has to go outside at 2:00 in
the morning wakes you up, then you spend the next two and a half
hours thinking about the case during the night. But I will tell you this.
I've looked at this and I believe that what I'm being asked to do is
substitute my judgment for that of the Governor on how to respond to
this COVID crisis which has been somewhat of a moving target. There
are 599 circuit judges in Florida at last count and I don't think we need
to have 599 governors in waiting. I don't know how I can be doing
anything but second-guessing what he's done on beach closures and
safe-at-home orders. And putting my -- any order I would do on this
would be a mere substitution of my preferences for his. And I don't
think courts should usurp the authority of the Executive whether we
like what the Executive has done or not. Our powers are limited
appropriately under the Constitution. I don't envy the Governor for
what he's had to deal with. I don't envy the citizens of the state.
2
of Florida for what they have wrestled with. And I know that there are
people that are rather proud of what the Governor is doing and I know
that there are people who are scared and concerned. But I will tell you
courts are not the place that public policy generally ought to be done,
because we're not really equipped for it. I've got me, and my staff is
my judicial assistant. We don't get to do independent investigations.
We don't get to have a whole lot of input from other folks. We can
conduct hearings and we can conduct trials and we're pretty good at
that part. But I have looked and I read what you-all did, but I cannot
find anything that gives me the authority to substitute my judgment
for what the Governor believes to be his exercise of discretion during
a state of emergency. So I am going to dismiss and grant the Motion
to Dismiss. My intent is to grant that with prejudice so that you can
immediately take me to the First District. Because I do think this is a
matter of importance, and I think it's a matter of time, and if the First
District tells me that I'm wrong and I do have the authority, then I'm
glad to address it and go from there.

But I do not believe I have the power, Mr. Uhlfelder, to do what you
have asked me to do and I'm sorry that I've got to tell you the answer
is no.

MR. UHLFELDER: Well, I appreciate your reading everything and I

know it's a difficult decision and we're not -- you know, we're not
going to give up, because it's not

THE COURT: And I'm not telling you should. What I'm trying to do
is give you the tool to take me up as quick as you can.

MR. UHLFELDER: Okay. Well, we will. I hate, you know -- well ...

THE COURT: And again, there may be some judges who worry about
getting reversed. I take great comfort in knowing that there is an
appellate court that can tell me if I've got it wrong. And it is my hope
that they will address this expeditiously.

THE COURT: Actually I'm granting it as to separation of powers and

I'm not reaching the rest of it.

MR. PRIMROSE: Okay. Understood.

3
 THE COURT: It's a very simple and direct order. I don't believe I have
the authority to do what they are asking me to do under any
circumstance.

MR. UHLFELDER: Well, I appreciate your reading everything and

taking it into consideration.

THE COURT: All right. And, Mr. Uhlfelder, I appreciate your

concern for the people of the state of Florida.

(R. 891, line 12 – 895, line 24).

Since Uhlfelder’s filing of his lawsuit, DeSantis’ failure to comply with his

constitutional and statutory duties have resulted in Florida becoming the epicenter

of COVID-19 as Uhlfelder anticipated many months ago which could have been

avoided with minimal judicial intervention.

When Uhlfelder’s Complaint was filed on March 20, 2020, there were at least

563 cases of COVID-19 in Florida and at least 10 people had died from COVID-19

in Florida. On March 29, 2020, when Uhlfelder filed his Amended Complaint there

were “at least 4,038 cases of COVID-19 in the State of Florida” and “[a]t least 56

people have died from COVID-19 in Florida.” (R. 12).

Florida was one of the last states to impose a stay-at-home order which was

only issued after Uhlfelder sued DeSantis requesting one, and one of the first to

reopen. In late April, 2020, DeSantis launched his Re-Open Florida Task Force.

None of the executive committee members were medical doctors or epidemiologists.

Instead, it was packed with leaders of the state’s largest corporations.

4
 As COVID-19 cases surged through much of the Northeast in April and May,

2020, DeSantis openly declared a premature victory. DeSantis earned praise

from President Trump for his response to the pandemic and attacked the media for

fearmongering after the state reopened its beaches.

“When you look at some of the most draconian orders that have been issued

in some of these states and compare Florida in terms of our hospitalizations ... I

mean, you go from D.C., Maryland, New Jersey, New York, Connecticut,

Massachusetts, Michigan, Indiana, Ohio, Illinois — you name it — Florida has done

better,” DeSantis said from the Oval Office on April 28,2020 before reopening the

state.

Buoyed by the low infection rates and encouraged by the White House, the

state’s first phase of reopening included restaurants, gyms, barbershops and large

spectator sporting events, with reduced capacity. Professional sports leagues,

including the NBA and Major League Soccer, announced they would resume their

seasons in Florida. The Republican National Convention was moved to Jacksonville

from Charlotte, N.C., because there would be fewer restrictions. In late April,

DeSantis bragged, “[i]f we can get far enough along, we can watch the new

quarterback of the Bucs play.”

On May 20, 2020, in DeSantis’ now famous tirade, blasted reporters for

questioning his plan and referring to boogeyman circling the Department of Health

5
and bragging about Florida’s success.

Approximately 500 doctors sent an open letter urging Jacksonville to

postpone the convention reduce attendance to which DeSantis responded, “I think

we’ll be fine by that time.” On July 2, 2020 DeSantis was asked if he takes any

responsibility for the cases spiking in Florida to which he responded: “Do you give

credit for Florida having fewer fatalities per 100,000 than the states you just listed?”

Fast forward to today since the dismissal of this case and DeSantis exercising

free reign to decimate Florida, and Florida is now the global epicenter of COVID-

19. As of July 13, 2020, Florida has reported a total of approximately 282,435 cases,

18,498 hospitalizations, and 4,277 deaths. On July 12, 2020, Florida shattered the

national record with 15,300 new COVID-19 cases in a single day. Today, July 13,

2020, it recorded 12,264 new cases. Since Friday, July 10, 2020, Florida has added

approximately 38,000 new cases.

Adding to the trouble, hospitals across the state are running out of beds in the

intensive care units, although state officials say there is still plenty of capacity and

hospitals have the ability to add surge beds.

If Florida were its own country, it would rank fourth in the world for the most

new cases in a day behind the United States, Brazil, and India with its record day on

July 12, 2020. The total of number deaths for the past week was 496, for an average

of nearly 71 per day setting a one-week record of nearly 500 confirmed coronavirus

6
deaths.

DeSantis has consistently downplayed the extent of the outbreak, noting that

many of the newly infected are younger people who are generally healthier. He has

also attributed the extremely high number of cases to an increase in testing. On July

7, 2020, he said Florida had “stabilized where we’re at.” On July 7, 2020, Florida

reported 206,447 COVID-19 cases and 3,778 deaths. Since the date DeSantis

bragged Florida had stabilized only six days ago, Florida now has 282,435 cases and

4,277 deaths, an increase of 75,988 cases and 499 deaths.

Anthony Fauci said on July 11, 2020 that “[d]espite the guidelines and the

recommendations to open up carefully and prudently, some states skipped over those

and just opened up too quickly,” and “[c]ertainly Florida ... I think jumped over a

couple of checkpoints." DeSantis has said he disagrees without any justification.

Uhlfelder’s claims are not barred by the separation of powers and by reversing

the dismissal with prejudice. In fact, the separation of powers mandates judicial

intervention to protect the health and welfare of Florida’s citizens from DeSantis’

constitutional abdication of his sworn duties. The preservation of Floridian’s lives

is dependent on the judiciary protecting them, because it is clear DeSantis has no

interest in protecting their lives during this deadly global pandemic where Florida

has now quickly become the epicenter.

SUMMARY OF THE ARGUMENT

7
 Floridians are constitutionally entitled to enjoy life and Florida statutes

obligate DeSantis to take basic steps to protect the lives of Floridians. DeSantis’

failure to take basic steps in the face of the rapid spread of COVID-19 is needlessly

costing thousands, if not hundreds of thousands, of Floridians their lives—a

violation of DeSantis’s statutory obligations and a violation of Uhlfelder’s

constitutional right to enjoy life as a Floridian. This forms the basis of Uhlfelder’s

complaint which should not have been dismissed with prejudice.

ARGUMENT

I. UHLFELDER’S CLAIMS ARE NOT BARRED BY THE

SEPARATION OF POWERS DOCTRINE.

A. Standard of Review.

Questions of constitutional law are reviewed de novo. Treasure Coast

Marina, LC v. City of Fort Pierce, 219 So. 3d 793, 795, 802 n.13 (Fla. 2017).

B. Argument on the Merits.

Uhlfelder’s claims are not barred by the separation of powers doctrine.

DeSantis’ contention that the trial court lacks the authority to grant the relief in

Uhlfelder’s Amended Complaint may have been more persuasive if DeSantis had

not completely abdicated his statutorily and constitutionally mandated duties to

protect the health and welfare of Florida’s citizens or to meet the dangers presented

by emergencies.

The Florida Constitution under Basic Rights section states that “[a]ll natural
8
persons…have inalienable rights, among which are the right to enjoy and defend life

and liberty[.] [emphasis added]” Art. I, §2, Fla. Const. This case focuses on

Floridian’s constitutional rights to enjoy life and Desantis’ failure to protect and

preserve the inalienable right to enjoy and defend life and liberty during a deadly

global pandemic. DeSantis’ constitutional failure has been on full display for the

entire world to see the past couple months as Florida has become the global epicenter

of this deadly pandemic. It is part of Floridian’s Declaration of Rights and

recognition of the inalienable right of all natural persons the right to

enjoy and defend life and liberty, and to pursue happiness. When a branch of

government violates these rights, another branch must step in.

The State of Florida is obligated to ensure the health and safety of its citizens.

Burnsed v. Seaboard Coastline R. Co., 290 So. 2d 13, 18 (Fla. 1974) (“Police Power

is the sovereign right of the state to enact laws for the protection of lives, health,

morals, comfort and general welfare.”). The Florida Supreme Court held in

Browning that “[t]he state’s interest in the preservation of life generally is considered

the most significant state interest.” In re Guardianship of Browning, 568 So. 2d 4,

14 (Fla. 1990); see also Burton v. State, 49 So. 3d 263, 266 (Fla. 1st DCA 2010)

(holding that the State’s interest in the preservation of life is “compelling”).

Article IV, §1 of the Florida Constitution states that “[t]he governor shall take

care that the laws be faithfully executed.” DeSantis has failed to do so which is a

9
constitutional violation mandating judicial intervention. He is provided the

“supreme executive power…and take care that the laws be faithfully executed.” He

has failed in this regard for which the courts must act.

As DeSantis notes in his Motion to Dismiss, §252.36(1)(a), Fla. Stat. (2019)

states that the “Governor is responsible for meeting the dangers presented to this

state and its people by emergencies.” (R. 33). While Chapter 252 contemplates

discretionary executive action, this discretion is predicated on the affirmative

obligation created by the plain language of §252.36(1)(a) that the Governor will

meet the dangers presented to the State and its people by an emergency pursuant to

his constitutional obligation. Furthermore, §252.36,1(a), provides that "the

Governor is responsible for meeting the dangers presented to the State and its people

by emergency," and then further it says, "the Governor will meet the dangers

presented to the state of Florida and its people by emergency.” This is mandatory

not discretionary. Uhlfelder made sufficient allegations to defeat a motion to dismiss

or should have been given leave to amend as requested.

Likewise, the Florida Constitution creates the fundamental basic right that all

Floridians have the right to “enjoy…life[,]” and that the State of Florida is obligated

to protect the lives, health, and welfare of its citizens. Art. I, §2, Fla. Const. The

citizens of the State of Florida including Uhlfelder should expect their government

to take basic action to combat the spread of a deadly pandemic disease rather than

10
let it spread and turn the State into the global epicenter as DeSantis has done.

DeSantis’ inaction in the face of the spread of this disease is nothing short of a

violation of this statutory and constitutional obligation. In failing to take the basic

precautionary measures outlined in Uhlfelder’s Amended Complaint, DeSantis

violated his statutory and constitutional obligations which is being proven every

single day. Uhlfelder’s complaint should not have been dismissed with prejudice.

He clearly made sufficient allegations to withstand a motion to dismiss.

DeSantis’ emphasis on the discretionary powers under Chapter 252 is wrong.

DeSantis states in his Motion to Dismiss “[t]o be sure, Plaintiff may believe a variety

of alternative actions are superior to those of the Governor.” (R. 31). Uhlfelder’s

Amended Complaint does not focus on his beliefs at all. Rather, it is focused on

DeSantis’ egregious abdication of his constitutional and statutory responsibility to

take affirmative steps to protect the health, life and safety of Floridians including

Uhlfelder in the face of COVID-19’s deadly spread. See Uhlfelder’s hearing Exs. 2,

18-22, 24-27, 31, 33. (R. 177, 179-182) submitted as part of the record:

2. Open letter to Governor Ron DeSantis entitled “Healthcare

Workers Urge Gov. DeSantis to Mitigate Spread of COVID-19”
(R. 190-233);

18. University of California San Francisco article, published March

14, 2020 (R. 338-347);

11
 19. WUSF News article published March 25, 2020, labeled: “Public
Health Expert To DeSantis: Florida Needs Statewide Stay-At-
Home Order” (R. 348-353);

20. Pensacola News Journal opinion article, published March 27,

2020, labeled: “Florida needs stay-at-home order before it's too
late” (R. 354-362);

21. Miami Herald article, last updated on March 28, 2020, labeled:
“Florida breaks past 4,000 confirmed coronavirus cases. 840
more reported in one day” (R. 363-376);

22. Business Insider article, published March 31, 2020, labeled:

“The top infectious disease expert in the US says we're seeing
'glimmers' that social distancing is helping, but says a turnaround
is yet to come” (R. 377-384);

24. CNN article, last updated April 1, 2020, labeled: “Social

distancing appears to be slowing the spread of coronavirus in
some areas but crisis won't end soon, officials say” (R. 385-389);

25. NBC Miami article, last updated on April 1, 2020, labeled:

“Spring Breakers May Have Taken Coronavirus From South
Florida Across US: Data Firm” (R. 588-592);

26. Politico opinion article, published April 1, 2020, labeled:

“Coronavirus vs. Governors: Ranking the Best and Worst State
Leaders” (R. 593-613);

27. Washington Post article, published April 1, 2020, labeled:

“Social distancing works. The earlier the better, California and
Washington data show.” (R. 614-635); and

28. Washington Post opinion article, published April 1, 2020,

labeled: “We must hold politicians responsible for deaths they
could have prevented” (R. 636-643).

According to one article, Desantis’ delay in taking steps to save lives, steps

that are patently obvious – is reckless in the extreme and morally indefensible. (R.
12
638). DeSantis has the discretion to act or abstain, but he does not have the

discretion to violate Florida Statutes or the constitutional rights of Floridians. City

of Freeport v. Beach Cmty. Bank, 108 So. 3d 684, 687 (Fla. 1st DCA 2013) (internal

citation omitted) (holding that the judiciary may not second guess the police power

decisions of coordinate branches of government “absent a violation of constitutional

or statutory rights.”).

The task before the trial court thus fits squarely within the judiciary’s defined

roles and should not have been dismissed with prejudice, that is: (i) to ascertain

whether another branch of government has violated the constitutional rights of

Floridians, and in the event that there is such a violation (ii) to grant the relief

requested as necessary to remedy that violation. See § 20.02, Fla. Stat. (2019) (“[t]he

judicial branch has the purpose of determining the constitutional propriety of the

policies and programs and of adjudicating any conflicts arising from the

interpretation or application of the laws.”). In this case, the trial court deprived

Uhlfelder of his constitutional and statutory right to seek his relief against DeSantis

by dismissing his case with prejudice.

The subsequent remedial measures taken by DeSantis since the filing of

Uhlfelder’s lawsuit and attempts to advance this litigation must also be noted to

support reversal. For weeks, DeSantis steadfastly refused to issue a statewide Safer-

at-Home Order. See Uhlfelder’s Hearing Exs. 20 and 31. (R. 354-362; R. 396-402).

13
However, after Uhlfelder filed his Amended Complaint on March 29, 2020, served

discovery, noticed DeSantis for deposition and scheduled a hearing with the Court

for the afternoon of April 1, 2020, DeSantis finally issued Executive Order 20-91 on

April 1, 2020, issuing a statewide Safer-at-Home Order—one of the remedies

requested in Uhlfelder’s Amended Complaint. Curiously, the Executive Order 20-

91 was issued merely hours before the Case Management Conference on the case at

bar.

DeSantis’ own conduct not only reflects the obvious need for the relief

requested in the Amended Complaint, it evinces a concern that the judiciary will—

rightly—act to protect the constitutional rights of Floridians because the executive

has failed to do so. How many more lives or how many other people have become

ill or died because DeSantis has failed to act? In fact, while DeSantis took certain

actions shortly after Uhlfelder his suit and before the trial court’s first hearing, after

dismissal with prejudice of the case, DeSantis has backtracked completely on those

measures. Obviously, one of the only reasons DeSantis has engaged in any basic

safety measures was because of the short-lived lawsuit in this matter. Since the

lawsuit was dismissed, DeSantis has reverted to his complete disregard for the lives

of his constituents. Judicial intervention must be taken to save more Floridians from

dying and becoming sick because it is clear DeSantis has no regard for their safety.

On March 20, 2020, when Uhlfelder sued Florida Governor DeSantis there

14
were a total of 563 COVID-19 Florida cases and 10 deaths. At the time of the

Amended Complaint on March 29, 2020, there were at least 4,038 cases of COVID-

19 in the State of Florida” and that “[a]t least 56 people have died from COVID-19

in Florida.” ¶11, Amended Complaint. (R. 12). As of today, and since the lawsuit

was dismissed and DeSantis has reverted back to his derelict ways, Florida is now

the global epicenter of COVID-19, and has reported a total of approximately 270,000

cases with a total of approximately 4,241 deaths. The total number of deaths for the

past week was 496 which is almost as much as total number of all cases when

Uhlfelder first sued DeSantis.

On July 12, 2020, the State reported 15,300 COVID-19 positive cases, which

is the highest total of any state since the start of the pandemic. At that rate, a

Floridian was testing positive every five and a half seconds.

Uhlfelder alleged that if DeSantis “fails to issue a statewide Beach Closure

Order….more Floridians, indeed, potentially vastly more Floridians…will become

sick, spread the disease and die.” ¶34, Amended Complaint. (R. 16). These

allegations must be taken as true for purposes of a motion to dismiss and should have

resulted in denial of the motion to dismiss. Ten days later, on the date of the hearing,

there were over 14,000 cases and almost 283 deaths and climbing in Florida. That

was an increase in about 10,000 cases and 230 deaths in 10 days. COVID-19 is

continuing to spread in Florida and kill more Floridians. In fact, as early as March,

15
2020, a leading US epidemiologist had warned Florida could become the next virus

hotspot. (R. 453).

On March 30, 2020, Uhlfelder requested a two-hour hearing on his emergency

injunction and the Court scheduled a Case Management Conference for April 1,

2020 at 3:15 EDT. At that point in time, the lawsuit had been pending for ten days

without a hearing and the need for emergency relief was getting more critical every

hour as DeSantis continued to resist the pleas of Uhlfelder, public health experts and

others for days.

Even as late as Tuesday evening on March 31, 2020, DeSantis said at a news

conference that he had no plans to issue a statewide stay at home order because the

White House had not told him to do so. Fred Barbash and Alex Horton, Florida

Governor issues coronavirus stay-at-home order after heavy criticism, WASH. POST,

Apr. 1, 2020, https://www.washingtonpost.com/nation/2020/04/01/coronavirus-

florida-desantis. For this, he won praise from the President. Id.

During his March 31, 2020 evening news conference DeSantis reiterated the

ineffectiveness of any such statewide stay at home order:

DeSantis again pleaded powerlessness at his news

conference and wondered how useful orders would be
anyway. For example, he said he had closed some beaches
at the request of local officials and people were gathering
on them anyway. “I was flying out of Miami yesterday,”
he said, “looking at beaches with signs saying they were
closed. “Were there people out there? Damn right there
were,” he continued. “It’s really up to the locals to deal
16
 with them one way or the other. “ … It’s just unfortunate,”
he said, “but no matter what you do you’re going to have
a class of folks who are going to do whatever the hell they
want to.”
He also suggested Floridians didn’t need public health
mandates because most were doing the right thing without
them, in part because there just wasn’t much to do.
“Everything’s pretty much closed,” he said. “It’s not like
there’s anything to do." Id.

Therefore, Uhlfelder served DeSantis with a Notice of Deposition to take

place on April 22, 2020 as it was clear from DeSantis’ nonchalant statements, he had

no intention of taking the necessary actions requested. Uhlfelder had previously

served DeSantis with a request for production that same day.

On the morning of March 30, 2020, Uhlfelder requested a two-hour hearing

on my emergency injunction and the Court scheduled a Case Management

Conference for April 1, 2020 at 3:15 EDT. Shortly before the April 1, 2020 Case

Management Conference DeSantis finally issued a Safer-At-Home Order and later

sought to prevent the taking of his deposition. At that time, thirty-seven states had

already adopted statewide orders for people to stay at home.

However, he later than overrode the local stay at home orders if they were

stricter than his with Executive Order 20-92. (R. 336-337). According to the Tampa

Bay Times article, last updated April 3, 2020, titled Ron DeSantis quietly signed

second executive order targeting local coronavirus restrictions:

The discreet circumstances under which the second order materialized has
17
 only added to the confusion. DeSantis signed it Wednesday at 6:36 p.m. —
just five hours after he issued his statewide stay-at-home order. Unlike that
first action — which DeSantis unveiled at a well-attended press conference
that aired on the state’s cable channel and was sent out in a news release from
his office — there was no announcement about the signing of the second order
or a subsequent news release.
Instead, it was quietly added to the governor’s website just after the state
reported the 100th coronavirus-related death in Florida. (R. 712-722).

“The turnabout from Florida’s governor was especially stark. DeSantis had

previously allowed spring break vacationers to socialize on Florida's beaches, where

they likely spread the virus. Florida, of course, also has one of the nation’s largest

populations of people over 65, who are especially threatened by the virus.” David

Leonhardt, Florida, Finally: The state will go on lockdown, far too late., N.Y. TIMES,

Apr. 2, 2020, https://www.nytimes.com/2020/04/02/opinion/coronavirus-desantis-

trump.html.

The citizens of the State of Florida have the right to expect their government

to take basic action to combat the spread of pandemic disease. DeSantis’ inaction

in the face of the spread of this disease is nothing short of a violation of this statutory

and constitutional obligation. The only real measures he has taken to protect

Floridians was during the short window this lawsuit was pending in some minimal

effort to save face. In failing to take the basic precautionary measures outlined in

Uhlfelder’s Amended Complaint and as proven by his post-dismissal conduct,

DeSantis violated his statutory and constitutional obligations. For the foregoing

18
reasons, the trial court’s dismissal should be reversed as the trial court not only has

the authority to grant the relief requested but must grant it. The lives of Floridians,

including Uhlfelder, depend upon it.

CONCLUSION

DeSantis’ failure to act is a flagrant violation of his basic constitutional

obligations to keep Floridians safe, including Uhlfelder. In his Amended Complaint,

Uhlfelder seeks remedies that will decrease the spread of COVID-19—and

consequently—Uhlfelder’s risk of contraction of it. His allegations were sufficient

to withstand a motion to dismiss and should not have been dismissed with prejudice.

Considering DeSantis’ intransigence with regard to the life and health of

Floridians that has only been exacerbated since dismissal of the case and lack of

judicial oversight, Uhlfelder requests this Court exercise its authority in protecting

the constitutional rights of Floridians by reversing the trial court’s dismissal with

prejudice. DeSantis has certain constitutional and statutory obligations which he

cannot ignore, and, when he does, the judiciary is responsible for addressing those

violations. Otherwise, Florida is no longer a democracy but at the mercy of an

Executive with unlimited powers during one of the most dangerous times in history.

Clearly, this is not the law of Florida. The health and safety of all Floridians depend

on the judicial branch to protect them from an Executive who has put their lives in

harm’s way.

19
 Dated this 13th day of July, 2020.

/s/ Daniel W. Uhlfelder

Daniel W. Uhlfelder, Esq.
FL Bar No. 0133922
daniel@dwulaw.com (primary)
paralegal@dwulaw.com (secondary)
reception@dwulaw.com (secondary)
DANIEL W. UHLFELDER, P.A.
124 East County Highway 30-A
Santa Rosa Beach, FL 32459
T: (850) 534-0246
F: (850) 534-0985

/s/ Gautier Kitchen

Gautier Kitchen, Esquire
Florida Bar No.: 0689793
THE KITCHEN LAW FIRM
103 N. Meridian Street
Tallahassee, Florida 32301
Telephone: (850) 329-6715
gautier@kitchen-law.com
josh@kitchen-law.com

/s/ Marie A. Mattox

Marie A. Mattox [FBN 0739685]
MARIE A. MATTOX, P. A.
203 North Gadsden Street
Tallahassee, FL 32301
Telephone: (850) 383-4800

Attorneys for Plaintiff-Appellant

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was
furnished via the Florida Courts E-filing Portal to: Nicholas A. Primrose, Deputy
General Counsel, Executive Office of the Governor, The Capitol, PL-05,
Tallahassee, Florida 32399-0001 [Primary e-mail:

20
Nicholas.Primrose@eog.myflorida.com; Secondary e-mail address:
Erin.Kraeft@eog.myflorida.com] on this 13th day of July, 2020.

/s/ Daniel W. Uhlfelder

DANIEL W. UHLFELDER, ESQ.

CERTIFICATE OF COMPLIANCE

I hereby certify that this Initial Brief complies with the font requirements of

Fla. R. App. P. 9.100.

/s/ Daniel W. Uhlfelder

DANIEL W. UHLFELDER, ESQ.

21